Hefei People's Procuratorate

Criminal protest

He Jian Gong Yi Shen Xing Kang [2018] No. 2

The Intermediate People's Court of Hefei City, Anhui Province made a judgment on the case of the defendant Song Moumou allowing others to take drugs with the criminal judgment (2018) Wan 01 Chu No. 45, and sentenced the defendant Song Moumou to six months' imprisonment, one year's probation, and a fine of 2000 yuan. After reviewing according to law, the Court believed that the judgment was wrong in the application of law to the defendant Song, and that the sentencing and probation application were obviously improper. The reasons are as follows:

1. The judgment of the first instance found that the defendant Song Moumou constituted voluntary surrender, which was an error of applicable law.

The verdict of the first trial found that the defendant, Mr. Song, had allowed others to take drugs three times, and many people participated in drug abuse each time. Although the defendant Song Moumou voluntarily surrendered to the case, he only stated one of the facts after he arrived at the case, and evaded the importance and argued that he was only present later, and it was difficult to stop others from taking drugs, and he did not take drugs himself, which was inconsistent with the facts found in the evidence on file; He has refused to admit the truth of the other two incidents, only expressed that the three facts were true during the trial, and argued that it was forgotten not to make a statement before. Judging from the time and content of the above confession, he did not truthfully confess his main crime to the judicial organ in a timely manner after taking the initiative to the case, which does not meet the constitutive requirement of "truthfully confessing his crime" in voluntary surrender. It cannot be considered as voluntary surrender, but can only be evaluated as voluntary confession in court. The judgment of the first instance found that it was an error of applicable law to constitute voluntary surrender.

2. The sentencing and probation of the defendant Song Moumou in the first instance judgment were obviously improper, and the judgments of the co criminals were unbalanced.

In this case, the co defendants Wei and Wu were sentenced to one year's imprisonment for the fact that they only allowed others to take drugs once, while the defendant Song had allowed others to take drugs three times, and many people participated in drug abuse each time. The court of first instance only sentenced them to six months' imprisonment. The sentencing was obviously improper, and the judgments of the co defendants were obviously unbalanced. In addition, the drug crime is a crime that seriously jeopardizes the social management order, and the evidence in the volume also reflects that since Song has operated * * KTV, several co defendants and other drug addicts have gathered in the KTV for a long time and many times to take drugs, which is of great social harm, and the application of probation to them is also obviously inappropriate.

To sum up, we believe that the Hefei Intermediate People's Court (2018) Wan 01 Xing Chu No. 45 Criminal Judgment is wrong in the application of law, and the sentencing and application of probation are obviously improper. In order to maintain judicial justice and accurately punish crimes, we propose a protest in accordance with Article 228 of the Criminal Procedure Law of the People's Republic of China, and please be sentenced according to law.

Sincerely

Anhui Higher People's Court

Hefei People's Procuratorate

December 28, 2018